Republic v Anthony Khamadi & 1 other

the cause of the death of the deceased was a penetrating head injury, secondary to sharp force trauma, following assault. He said the deceased had seven cut wounds on the scalp, three cut wounds on the left upper limb, four cut wounds on the right upper limb, one cut wound on the back of left chest, three depressed skull fractures, and three lacerations on the brain. 3. The accused were put on their defence. The 1st accused denied killing the deceased. He said he was in his house throughout on the material day and at the material time, and he was only informed of the death the next morning. He said he did not know why he was brought to court. The 2nd accused said he witnessed a disagreement between the deceased and the 1st accused on the material day, which led to a fight, and eventual death of the deceased. He said that he was not party to the fight. He said it was the 1st accused who killed the deceased, and the two had had disputes. 4. The parties did not file written submissions 5. Murder is defined in section 203 of the Penal Code, and its penalty is prescribed in section 204 of the Penal Code. It is unlawful killing with malice aforethought. Malice aforethought is defined in section 206 of the Penal Code. Sections 203, 204 and 206 provide as follows: “ 203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 204. Any person convicted of murder shall be sentenced to death. 205. Any person who commits the felony of manslaughter is liable to imprisonment for life. 206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances – (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit a felony; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.” 6. The elements of the offence of murder are the death itself, the cause of the death, the role of the accused in the causation of the death, and whether the accused person acted with malice aforethought. 7. With regard to the death, it is common ground that the deceased died. PW1 and PW3 were present when he was fatally wounded, and saw his dead body. PW5 conducted an autopsy on the dead body. The 2nd accused acknowledges that death. On the cause of the death, PW1 and PW3 testified on the vicious attack on the deceased with a panga and a slasher, among other weapons. That evidence was consistent with that of PW5, the pathologist, who identified cut wounds on various parts of the body of https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3235/eng@2022-07-08 2

page 2 of 4

the deceased. He opined that the injury that caused the death was a penetrating head injury, secondary to a sharp trauma force, following assault. 8. On the link between the accused persons and the cause of the death, the testimonies of PW1 and PW3 are critical. They testified that they were present when the assault happened. They put both accused persons at the scene, and they said both played roles in the process. The 2nd accused testified that it was the 1st accused who killed the deceased. He said he was at the scene, and witnessed the fight and the killing. 9. Regarding malice aforethought, the mens rea for the offence, the elements are either are intention to cause death; or to cause grievous harm; or knowledge that the act causing death will possibly cause death or grievous harm; or indifference as to whether death or grievous harm would occur; an intention to commit a felony or; intention to facilitate escape. See Republic vs. Felix Nthiwa Munyao Nairobi HCCRC No. 43 of 1999 (Etyang J). For the purpose of this case, I have to determine whether the acts by the accused persons, as narrated by PW1 and PW3, demonstrated an initiation to kill; or intention to cause grievous harm; or knowledge that the acts would cause death or grievous harm; or indifference whether death or grievous harm is caused; or an intention to commit a felony; or to facilitate escape. Once it is established that all of or one of the above was present, animated or motivated the accused persons, then malice aforethought will have been established. 10. PW1 and PW3 talked of a quarrel between the 1st accused and the deceased. The deceased is said to have had armed himself or to have had by then holding a jembe, with which it would appear he attacked the 1st accused. The 1st accused, who was at that time with the 2nd accused, then left, with the 2nd accused person, and both of them came back to the compound of the deceased armed with a panga and a slasher, and there was also mention of an axe. They attacked the deceased, who fled into the safety of his house, and locked himself inside. The pair broke into the house, to flash the deceased out, chased out his wife, PW3, and then proceeded to assault the deceased, killing him in the process. 11. Who was the aggressor? These events happened at the compound of the deceased. It is not clear who provoked the altercation, but it is critical that the incident was at the compound of the deceased. The visitors, the accused persons herein, ought to have retreated from the compound of the deceased, the moment it became clear that their visit or presence there was unwelcome. The deceased was said to have been armed with a jembe, or the accused persons found him holding the jembe, and he was said to have had used it to attack the 1st accused, who alleged said he that he had been cut with it. At that point, the accused persons do not appear to have been armed, and did not fight back with any weapons, because they had none. Instead, they retreated to their own compound or compounds. It would appear that the deceased did not pursue them at all to their compound or compounds. It would appear that he remained inside his own compound. The accused then came back while armed with a panga, an axe and a slasher. They attacked the deceased at his home, he retreated into his house and locked himself in. The accused were not done with him, they broke down the door to his house, flashed him out and beat him to death with the panga, the slasher and the axe. From all this, it is my conclusion that the aggressors or assailants were the accused persons. The deceased might have provoked them, when he initially allegedly hit the 1st accused with the jembe, but then they retreated. They should have stayed away from him, for he did not pursue them. They had brought trouble to his compound. They had time to cool off. Instead, they armed themselves with offensive weapons and came for a kill. 12. Was there intention to cause death? The accused persons armed themselves with offensive weapons, a panga, an axe, a hoe stick and a slasher, according to PW1 and PW3. They used these weapons on the deceased. He locked himself in his house, but they broke into it and beat him to death with the weapons. The weapons that the deceased armed themselves with and the push to continue the assault https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3235/eng@2022-07-08 3

page 3 of 4

on the deceased despite his locking himself in his house, demonstrate resolve, on the part of the accused persons, to kill the deceased or to cause him grievous harm or to commit a felony, all of which are elements of the mens rea necessary for murder. The injuries, as enumerated by PW5, were numerous. Seven cut wounds on the head, seven cut wounds on the arms and one cut wound on the chest. On the head were three fractures of the skull and three lacerations on the brain. All these were grievous injuries, that must have been inflicted by persons who had only one intention, to cause death. It could also be said that a person who aims at the head of another, with a sharp object, and causes three fractures of the skull and injury to the brain, even if he did not intend to kill, had knowledge that such injury could cause death or grievous harm; or was indifferent as to whether the injury could cause death or grievous harm. All these are elements of malice aforethought. I am satisfied, from the straightforward testimonies of PW1 and PW3, that the two accused persons acted in concert, and had the requisite mens rea for the murder of the deceased. 13. The 1st accused testified that he was not at the home or compound of the deceased on the material day and at the material time. PW1 and PW3 both placed him at the scene. The 1st accused person did not call any witness, to attest to his claim that he was elsewhere. The 2nd accused stated that he was indeed in the vicinity. He even spoke to the deceased. He spoke of an alteration between the deceased and the 1st accused, and pointedly said the 1st accused killed the deceased. On his part, he said that he played no part at all in the fight or alteration between the 1st accused and the deceased, and that his name was mentioned only because he happened to be present. I have closely looked at the record, and in particular the testimonies of PW1 and PW3. The two are in sync on material particulars, in terms of what happened on the fateful day. They placed both accused persons at the scene. They stated that both accused persons beat and cut the deceased. Both accused persons were said to be armed with offensive weapons. The 1st accused had a panga while the 2nd accused had a slasher. The injuries noted by PW5 were cut wounds and fractures, no doubt occasioned by such sharp objects, such as pangas, axes and slashers. The cut wounds and fractures were numerous, suggesting that they were inflicted by more than one person. The defences by the accused persons cannot, therefore, hold as against the testimonies of PW1 and PW3. 14. Overall, I find and hold that the prosecution herein established a case against both the accused persons, to the required standard, and I do hereby convict them of the charge of the murder of the deceased herein, Silas Lisiri, contrary to section 203, as read with section 204, of the Penal Code. 15. For the purpose of sentencing, I do, hereby, direct the County Director of Probation and Aftercare Services, to conduct a socio-inquiry, and file a report within fourteen days. Thereafter, there shall be a sentencing hearing, at which the accused persons shall exercise their rights, if so minded, to make statements in mitigation. It is so ordered. JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS.8TH.DAY OF JULY 2022 W MUSYOKA JUDGE Mr. Erick Zalo, Court Assistant. Ms. Kagai, instructed by the Director of Public Prosecutions, for the Republic. Mr. Getanda, Advocate for the accused persons. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3235/eng@2022-07-08 4

page 4 of 4